Plaintiff
Judy Woller (Woller) originally filed suit in the Montana
Eighth Judicial District of Cascade County. (Doc. 4.)
Defendant BNSF Railway Co. ("BNSF") removed the
case to this Court on diversity of citizenship grounds. BNSF
alleges that complete diversity exists as Woller fraudulently
joined John Swing as a defendant. Woller filed a Motion to
Remand. (Doc. 10.)

United
States Magistrate Judge John Johnston conducted a hearing in
this matter on November 1, 2017. (Doc. 38.) Judge Johnston
entered Findings and Recommendations on January 3, 2018.
(Doc. 43.) The Court granted BNSF and Swing until January 24,
2018 to file any objections to Judge Johnston's Findings
and Recommendations. (Doc. 45.) BNSF and Swing timely filed
an objection on January 24, 2017.[1] (Doc. 46.) The Court reviews
de novo Findings and Recommendations to which a
party timely objects. 28 U.S.C. § 636(b)(1). The Court
reviews for clear error those portions of Judge
Johnston's Findings and Recommendations to which the
parties did not specifically object. McDonnell Douglas
Corp. v. Commodore Bus. Mach, Inc.,656 F.2d 1309, 1313
(9th Cir. 1981).

This
matter stems from Woller's alleged exposure to asbestos
in Libby, Montana. (Doc. 4 at 2.) The Court can exercise
subject matter jurisdiction over a state law claim only when
the amount-in-controversy exceeds $75, 000.00, and complete
diversity exists between the parties. Complete diversity
requires that no party be a citizen of the same state as
another party. 28 U.S.C. §§ 1332(a), 1441(b). The
action may not be removed if any properly joined and served
defendant remains "a citizen of the State in which the
action is brought" ("forum defendant rule").
28 U.S.C. § 1441(b)(2).

Judge
Johnston determined that BNSF established diversity of
citizenship in this action. (Doc. 43 at 3.) Judge Johnston
determined that BNSF exists as a citizen of Delaware and
Texas. Id. Woller is a citizen of Arizona.
Id. at 4. Swing, the managing agent for BNSF,
remains a citizen of Montana. Id. Judge Johnston, as
a result, determined that complete diversity exists.
Id. at 4. The presence of Swing and his
corresponding Montana citizenship requires, however, remand
to Montana state court pursuant to the forum defendant rule.
Id.

BNSF
and Swing raise four objections to Judge Johnston's
findings and recommendations. BNSF and Swing argue that Judge
Johnston failed to analyze properly the following issues: 1)
that Swing cannot be held personally liable in this case
because Woller did not allege any specific facts or claims
against Swing in the Complaint; 2) that Swing's actions
were not independently tortious in nature; 3) that even if
the allegations in the Complaint were sufficient, piercing
the pleadings reveals a lack of genuine dispute that Swing
served merely as a manager of depot clerks and did not play a
role in the alleged negligence; and 4) that Swing does not
owe a legal duty to protect the public from the acts of
others. (Doc. 46 at 3.)

I.
Allegations in Complaint

BNSF
and Swing argue that the only reference to Swing in the
Complaint constitutes a two-sentence allegation regarding his
role at BNSF. Id. at 6. BNSF and Swing argue this
allegation does not constitute a sufficient pleading as
Woller has not shown that she possesses an entitlement to
relief against Swing. The Court disagrees.

Woller's
Complaint alleges all the same conduct against Swing as
Woller alleges against BNSF, by incorporation of reference.
The Complaint alleges negligence by Swing personally for
failing to inquire, study, and evaluate the dust hazard to
human health. The Complaint alleges that Swing negligently
failed to take measures to prevent toxic dust from collecting
upon and escaping BNSF's property. Finally, the Complaint
alleges that Swing negligently failed to warn Woller of the
true nature of the hazardous effects of the dust.

II.
Independently Tortious Conduct

BNSF
and Swing argue that Woller fraudulently joined Swing. This
fraudulent joinder, according to BNSF and Swing, requires
this Court to ignore Swing's presence in the action under
application of the forum defendant rule. A corporate agent
under Montana law may be held personally liable if the agent
can be deemed personally negligent, or if the agent's
actions can be deemed tortious in nature. Crystal Springs
Trout Co. v. First State Bank of Froid,732 P.2d 819,
823 (Mont. 1987) (citations omitted). Judge Johnston
determined that the Montana Supreme Court has allowed an
employee to be named as a defendant when the allegations
exist against the employee personally. (Doc. 43 at 5.)

BNSF
and Swing argue that any alleged negligence committed by
Swing occurred within the course and the scope of his
employment. Id. at 5. BNSF and Swing argue that
Swing cannot be held personally liable for conduct occurring
within the course and scope of his employment. (Doc. 46 at
5). Judge Johnston determined that courts within this
District have deemed it sufficient to hold the agent
personally liable if the agent either ignored warnings, or
participated in the principal's tortious conduct. See
Castro v. ExxonMobil Oil Corp., 2012 WL 523635 at 3 (D.
Mont. 2012); Staley v. BNSF Railway Co. & Lynn
Ludwig, 2015 WL 860802 (D.Mont. 2015).

BNSF
and Swing attempt to distinguish Castro and
Staley based on the defendant's knowledge in
each case. This distinction proves unpersuasive. Woller
alleges in her Complaint that Swing acted as the managing
agent for BNSF in Libby, Montana, and as "such is
separately responsible for acts wrongful in this
nature."

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;III.
...

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